Jeremiah Shakotko v Australian Crane and Machinery Pty Ltd T/A Australian Crane and Machinery

[2018] FWC 6510

[2018] FWC 6510

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Jeremiah Shakotko
v
Australian Crane and Machinery Pty Ltd T/A Australian Crane and Machinery
(U2017/13118)

COMMISSIONER CRIBB MELBOURNE, 23 OCTOBER 2018

Application for an unfair dismissal remedy - remedy.

[1] Mr Jeremiah Shakotko (the Applicant) has lodged an application under section 394 of the Fair Work Act 2009 (the Act) for an unfair dismissal remedy. The application is in relation to his dismissal by Australian Crane and Machinery Pty Ltd T/A Australian Crane and Machinery (the Respondent, the company, ACM).

[2] The company filed a jurisdictional objection on the grounds that there was no dismissal at the initiative of the employer. The Respondent’s jurisdictional objection, together with evidence in relation to section 387 of the Act, was heard by way of determinative conference on 3 April 2018. Mr Shakotko represented himself at the determinative conference whilst the company was represented by Mr B Potter, Managing Director.

[3] At the conclusion of the determinative conference, the Commission issued a decision in transcript. The Commission found, on the basis of the evidence and material before it, that Mr Shakotko was dismissed by the company. The Commission also gave reasons for the finding. The Respondent’s jurisdictional objection was, therefore, not upheld.

[4] As a consequence, the Commission addressed the requirements of section 387 of the Act. Again, a decision in transcript was made by the Commission. The Commission found that Mr Shakotko’s dismissal was harsh, unjust and unreasonable in accordance with section 387 of the Act. The Commission also found that Mr Shakotko’s dismissal was unfair (section 385 of the Act).

[5] The Commission was then required to consider the issue of remedy (section 390 of the Act). Section 390(3) states that the Commission must not order the payment of compensation unless two conditions have been met. The first condition is that the Commission is satisfied that reinstatement is inappropriate (section 390(3)(a)).

[6] Mr Shakotko was not seeking reinstatement whilst Mr Potter was comfortable if Mr Shakotko was reinstated. For the reasons given in transcript, the Commission found that, in all of the circumstances of this matter, reinstatement was not appropriate.

Compensation

[7] Section 390(3)(b) requires that the Fair Work Commission consider it appropriate, in all of the circumstances of the case, to order compensation. Taking into account all of the circumstances of this matter, an order for payment of compensation is considered appropriate.

[8] Section 392(2) of the Act sets out the criteria for deciding the amount of compensation in all of the circumstances of the case. These criteria are:

“(2) In determining an amount for the purposes of an order under subsection (1), the FWC must take into account all the circumstances of the case including:

(a) the effect of the order on the viability of the employer’s enterprise; and

(b) the length of the person’s service with the employer; and

(c) the remuneration that the person would have received, or would have been likely to receive, if the person had not been dismissed; and

(d) the efforts of the person (if any) to mitigate the loss suffered by the person because of the dismissal; and

(e) the amount of any remuneration earned by the person from employment or other work during the period between the dismissal and the making of the order for compensation; and

(f) the amount of any income reasonably likely to be so earned by the person during the period between the making of the order for compensation and the actual compensation; and

(g) any other matter that the FWC considers relevant.”

[9] I will deal with each of the criteria in turn, guided by the Full Bench decision in Haigh v Bradken Resources Pty Ltd 1 (Haigh). In Haigh, the Full Bench also referred2 to the Full Bench decisions which have applied the approach in Sprigg v Paul Licensed Festival Supermarket3 (Sprigg). I respectfully adopt the approach taken in Haigh.

[10] The Commission indicated, during the determinative conference, that the Commission was unable to determine the issue of remedy, at that time, because there was insufficient information before it. The parties were requested to provide information in relation to the requirements of section 392(2) of the Act, by Thursday 19 April 2018, with submissions in reply by Friday, 27 April 2018.

[11] The Respondent sent an email to the Commission and to the Applicant, on 24 April 2018, which made an offer of compensation. Mr Shakotko provided documentation regarding income earned together with evidence that he was seeking other work, on 8 April 2018. A further email was received from Mr Shakotko on 24 April 2018 setting out a number of calculations. On the basis of the material provided by the company and Mr Shakotko, the Commission will address the requirements of section 392(2).

Section 392(2)(a) - effect on the viability of the employer’s enterprise

[12] No submissions were received from the company in relation to the effect of an order for payment of compensation on the business. Neither were their submissions from the company requesting to pay any compensation ordered in instalments. Therefore, the Commission is unable to find that an order for payment of compensation would have a deleterious effect on the viability of the Respondent.

Section 392(2)(b) - Applicant’s length of service

[13] Mr Shakotko commenced with ACM in March 2015 and was dismissed in November 2017. Therefore, the Applicant’s length of service is approximately 2 years and 8 months.

Section 392(2)(c) - remuneration would have received

[14] On the basis of the evidence before me, in all of the circumstances of this matter, I have formed the view that, if Mr Shakotko had not been dismissed, he would have continued in employment for a period of 12 months. For the purposes of the calculations, in accordance with the Sprigg principles, it is determined that the remuneration that Mr Shakotko would have received was 12 months pay.

[15] At the time of his dismissal, Mr Shakotko was earning $3,080.00 gross per week. 4 Therefore, the amount Mr Shakotko would have received for the 12 month period of anticipated employment is $160,160.00 (gross).

Section 392(2)(d) - efforts to mitigate loss

[16] Mr Shakotko provided evidence of alternative employment that he had obtained in January 2018 and evidence of his (unsuccessful) attempts to find full time work. Full time employment was obtained interstate in April 2018. 5 Therefore, I am satisfied that Mr Shakotko has made reasonable attempts to mitigate his loss.

Section 392(2)(e) and (f) - remuneration earned and income reasonably likely to be earned

[17] The period of anticipated employment is from 23 December 2017 to 22 December 2018. Prior to 9 April 2018, Mr Shakotko earned $4,094.00 gross as a casual employee. 6 In addition, Mr Shakotko stated that, on 9 April 2018, he commenced in a job which pays $1,634.00 gross per week.7

[18] Therefore, for the period between 9 April and 22 December 2018, Mr Shakotko is estimated to have earned/will earn $57,190.00 gross (35 weeks x $1,634.00 gross per week).

[19] The total amount of remuneration earned and likely to be earned is $57,190.00 plus $4,094.00 = $61,284.00 gross.

[20] The provisional compensation amount is $160,160.00 gross (remuneration would have earned) less $61,284.00 (remuneration earned/anticipated to earn) which results in the provisional compensation amount of $98,876.00 gross.

Section 392(2)(g) - other matters

[21] There were no submissions made by either party in relation to this section.

Section 392(3) - misconduct

[22] This section is not relevant in this matter.

Contingencies and taxation

[23] As the period of anticipated employment has almost passed, a small deduction for contingencies will be made – 5%. This results in a provisional compensation amount of $92,876.00 gross.

Section 392(4) - shock or distress

[24] No part of the provisional compensation amount relates to any shock or distress suffered by Mr Shakotko.

Section 393 - payment by instalments

[25] As indicated earlier, there was no request by ACM to pay in instalments.

Section 392(5) - compensation cap

[26] The amount to be ordered by the Commission must not exceed the lesser of the provisional compensation amount and half the amount of the high income threshold immediately before the dismissal. The provisional amount of compensation is $92,876.00 gross. Half of the high income threshold (as of 1 July 2017 - $142,000.00) is $72,000.00 gross. The lesser of the two amounts is $72,000.00 gross.

Conclusion

[27] Therefore, it is considered appropriate to make an order that Australian Crane and Machinery Pty Ltd T/A Australian Crane and Machinery pay $72,000.00 gross, less taxation as required by law, in compensation to Mr Shakotko, in lieu of reinstatement, within 21 days of this decision.

[28] An order 8 to this effect will be issued separately.

Appearances:

J Shakotko on his own behalf

B Potter from the Respondent

Hearing details:

2018.

Melbourne (determinative conference):

April 3.

Printed by authority of the Commonwealth Government Printer

<PR701634>

 1   [2014] FWCFB 236

 2   Ibid at paragraphs [10] – [12]

 3 (1998) 88 IR 21

 4   Email from Mr Shakotko, dated 24 April 2018, ACM payslip for period ended 31 October 2018 attached

 5   Email from Mr Shakotko, dated 8 April 2018, various attachments

 6   Email from Mr Shakotko, dated 24 April 2018, submissions

 7   Ibid

 8   PR701635